I think the point was that the person looking for protection (confidentiality) is willing to give out information that makes them vunerable in both cases (doctor and lawyer) without absolute protection.  Why would a source (who do sometimes seek reporters, such as in the case of Deep Throat) need greater protection that patients or legal clients for the press to serve the public?

That's what that point was leading to.  Of course I'm giving journalists the benefit of the doubt and assuming that they do play a significant role in creating an informed public.  If it really got down to it I think almost all TV journalism would be out except for C-SPAN, Jim Leher, and a few others.

But you select the weaker of the two examples (medicine).  The conversations protected by attorney-client privilege could probably cause at least ten times as much damage to others as those between journalists and confidential sources.  I'm not saying that therefore those conversations should have no protection, just that this deonstrates why it need not to be absolute.

The conversations protected by attorney-client privilege could probably cause at least ten times as much damage to others as those between journalists and confidential sources.
What's your basis for this opinion?

So, in other words, you're speculating.

Violating the attorney-client privilege is serious because, among other things, it could result in the disclosure of incriminating information that would cause someone to go to jail.  Or it might result in disclosing trial strategy that might cost someone a multimillion dollar lawsuit.  Or it would cause the lawyer-client relationship to completely break down, with clients unwilling to tell all to their attorneys and as a result, the attorneys unable to give their clients good legal advice, and that in turn could effect the clients liberty or financial interests.  And that's in addition to the privacy interests that one would recognize in a medical context (which would also be applicable).

That said, the crime/fraud exception only applies when the lawyers services are sought or used to perpetrate the crime or fraud.  See for example http://www.courts.state.tx.us/publicinfo/TRE/tre-98.htm#RULE503

There is also a somewhat broader exception to the ethical rules where a lawyer MAY reveal information that is necessary to prevent a FUTURE crime or fraud or MUST reveal to prevent a crime or fraud with very serious consequences (death or serious bodily injury).  http://www.txethics.org/reference_rules.asp?view=conduct&num=1.05

However, it might help if I clarified a few things. For one, there is is only one privilege of a constitutional nature, and that's privilege against self-incrimination. All other privileges are rules of evidence. That is, they determine what can or cannot be used in a trial.

In criminal cases the attorney-client relationship has constitutional significance, and therefore the attorney-client privilege is at least to some degree constitutional in that context.  We don't usually delve into this  constitutional aspect as attorney-client privilege situations are generally resolved under privilege as found in the rules of evidence.

The reason it's important is that journalists are the ones holding the reporter's privilege. They don't need the permission of their source. (Arguably, there is a separate privilege in whistleblower cases, but that's another issue.) So, attorney-client privilege doesn't make a fair analogy, because the client holds the privilege. When, as here, the reporter holds the privilege and, as a result, the right to waive that privilege, there just isn't a compelling reason to prevent forced disclosure to determine if a crime has been committed.

Actually that depends on how one would characterize the "reporter's" privilege.  In theory, one could ground it on the source's freedom of speech or perhaps expand the notion of freedom of the press to encompass the source's right to communicate with the press in a confidential fashion.  Then it would be a privilege held by the source.  Under those circumstances, one could then perhaps argue that the journalist cannot reveal the source (assuming he's promised confidentiality, establishing the confidential relationship) without the source's consent.  Obviously a journalist would have no problem revealing a source who does not wish or no longer wishes to remain confidential.   Of course, the question might arise whether such a restriction on the reporter would itself be an impermissible infringement on the press, but that might be handily addressed by the idea that the privilege doesn't exist unless the reporter agrees, and he cannot complain about what he agreed to.

Another issue is the specialness of the First Amendment with regard to how courts analyze issues.  Even if the privilege were the reporter's, the argument might be that special treatment is justified to protect robust news reporting.  Of course, then the attorney client privilege would not a particularly good analogy, since, even when it is constitutionally based, it is not based on the First Amendment.

Obviously, the law does not currently recognize a reporter's privilege under either of these scenarios and I am not necessarily saying it should -- just that, if it did, one of the above would likely provide the theoretical grounding for it.

In criminal cases the attorney-client relationship has constitutional significance, and therefore the attorney-client privilege is at least to some degree constitutional in that context. We don't usually delve into this constitutional aspect as attorney-client privilege situations are generally resolved under privilege as found in the rules of evidence.

Yes and no. Remember that the privilege belongs to the client in attorney-client privilege.

Of course.

Whether the attorney can be forced to reveal information is a function of whether the client can be forced to waive the privilege. The Fifth Amendment would protect the client's right NOT to waive the privilege.

Because the attorney is essentially an extension of the client.  But what makes the attorney an extension of the client is grounded in the Sixth and not merely the Fifth Amendment.  For example, if an accused talked to his brother (who was not his attorney), his desire to keep the communication confidential would not avail him.  Or, if in the unlikely event that a State decided to abolish the marital communication privilege, then such communication would not be protected by the constitutional right against self incrimination.    

Actually that depends on how one would characterize the "reporter's" privilege. In theory, one could ground it on the source's freedom of speech or perhaps expand the notion of freedom of the press to encompass the source's right to communicate with the press in a confidential fashion. Then it would be a privilege held by the source.

Perhaps, but there would be no basis for establishing a right to confidential communications with the press....

Well, that's the tricky part, isn't it?  :)

Leaving aside the fact that there is no "special" rule for the First Amendment, you are essentially making a public policy argument. You are saying, in effect, that it would be "good" for society if reporters could keep the identity of a witness to a crime secret just so the public can find out what happened.

There are at least two special rules for the First Amendment that I can think of off the top of my head: 1) overbreadth, and 2) de novo review of the facts.   My point was that some special rules do apply (at least in the speech/press context) that do not apply to other types of constitutional violations.   First Amendment cases are often concerned with preventing a "chilling effect" which is part of the underlying rationale for these special rules and could conceivably be part of a rationale for a reporter's privilege  even though such a privilege would be different from other privileges.  I'm not saying the rationale ultimately works, just that an argument can at least be made.

True, there is a public right to know what happened, but there is also a greater public right to prosecute wrongdoers. That is a fundamental public policy as well. And given the fact that we have public trials in this country, there is no argument that the only way the information gets out is by doing it in the press. So, protecting the reporter's privilege as you've suggested would not serve any purpose not served elsewhere, and it would destroy one of the fundamental building blocks of a civil society -- the right to prosecute wrongdoers.

Some would say it enables sources to come forward with important information that would not otherwise be revealed.  In some cases, it would even be a whistleblower type information.  

Of course, a reporter's privilege could well be subject to abuse, as you suggest and there are indeed many avenues for finding out information.  So, I would expect an advocate of reporter's privilege to isolate just how important the privilege is to the ability of the press to report on important events that the public has a right to know and why that would outweigh the detrimental effects on law enforcement of respecting such a privilege.

The Sixth Amendment, to my knowledge, has only been applied in the context of the accused's right to the advice and assistance of counsel. I understand that the accused has to speak with an attorney in order to obtain that advice, but the question of whether the accused's words enter the courtroom, I believe, would always fall under the Fifth Amendment.

Not so.  There is Massiah, Moulton, and even Estelle (although that's both Fifth and Sixth).  The accused's words can be excluded under the Sixth, even if Miranda is complied with or not applicable, where the accused has been charged (usually indicted).  Massiah and Moulton involed undercover informants -- that are exempt from Miranda, but violated the Sixth because they interfered with the attorney client relationship.  Estelle presented both Miranda and Sixth Amendment violations due to questioning by a psychiatrist without warnings and after indictment.

But Miranda brings up another issue -- If the Supreme Court can recognize a "prophylactic" rule to secure the right against self-incrimination, it could use that reasoning to justify a "prophylactic" rule protect freedom of the press through confidential sourcing.  I don't think it'll do that primarily because I think the Supreme Court has no wish to extend Miranda's reasoning any further.  It won't get rid of Miranda, but it has limited that decision at almost every turn.   And of course, I'm sure some distinctions could be drawn between Miranda and a reporter's privilege.  Just noting there are some parallels.

Finally, overbreadth is not necessarily special to the First Amendment.  It applies any time the state bans both protected and unprotected activity. I would heartily agree that it most often comes up in the context of the First Amendment, but it could also apply to, for example, a law banning private ownership of "dangerous weapons." (Which would presumably include nuclear bombs and revolvers.) It is also the concept the Court is using (without explicitly naming it) when they strike an otherwise constitutional abortion ban when it doesn't make allowance for the health of the mother.

But it's application in the First Amendment context is unique.  Standing rules are relaxed so that parties do not have to show that their own rights are violated, only that the offending statute would be impermissible as to someone's conduct.  Similarly, in the vagueness context, a First Amendment attack can be made even if the statute is only vague as to people not before the Court.  For any other constitutional claim, a vagueness challenge can succeed only if 1) it is vague as applied to the litigant, or 2) it is vague in all applications.  The First Amendment overbreadth doctrine allows vagueness claims where they would otherwise fail.

At least, that's how it's postured.  If you want to argue some Supreme Court decisions have sub silentio used First Amendment type reasoning in other contexts, I'd have to see the case, but I might not necessarily disagree with you.  But the reasoning is express in the First Amendment context, and it is not elsewhere.

Truthfully, though, I think the reason I object to your analysis is that it is seeking to expand the accepted understanding of the constitution. That, to me, is the heart of judicial activism, and I would tend to reject it out of hand -- even if I find the underlying purpose somewhat useful.

As I said, I wasn't necessarily endorsing the reasoning but saying it was available.  Some conservatives are attempting to use it now, possibly because their ox is getting gored with regard to the events surrounding Plame.

Up front, this discussion is a lot like the proverbial "how many angels can dance on the head of a pin?" Our disagreement is largely theoretical.

My response was mainly to further the discussion with some ideas, not to defend the existence of a reporter's privilege, as I assumed there would be others who are actually interested in doing that.

The key point of Massiah, as explained by Moulton, was that an accused has a sixth amendment right to have the state deal only with his attorney, once the right to an attorney is invoked.  The fact that it involved statements made by the accused is more a function of the state's motives than the constitutional right at stake. It would be a violation of Massiah and Moulton, for example, for the state to make a plea bargain offer to the accused, rather than to his attorney as required. True, the remedy was exclusion of the statements, but that doesn't go to the heart of the violation.

Moulton and Massiah show that the attorney-client relationship has constitutional significance.  Moulton specifically says that the Sixth Amendment right guarantees that the attorney is a "medium" between the defendant and the government.  For the attorney to be a "medium", there must be a privilege between the attorney and the defendant.  If an undercover government agent cannot elicit statements from a defendant, does it really make sense that the 6th Amendment would permit the government to, for example, surreptitiously record a conversation between the defendant and counsel? In Patterson v. Ill.  (footnote 3) the Supreme Court cited Moulton for the proposition that "Once an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect."  If a state tried to abolish the attorney-client privilege outright, I think it would run into some problems from the federal judiciary.

Your comments would be accurate until the 2000 Dickerson decision, where the Court decided Miranda was not a prophylactic safeguard, but was a constitutional right in its own regard.

Dickerson just reaffirmed the status quo with regard to Miranda after the 4th Circuit tried to eviscerate it.  Chavez v. Martinez, decided in 2003, says that the failure to give Miranda warnings is not itself a freestanding constitutional violation.  It's only the admission of unwarned statements in Court that gives rise to a constitutional violation.  Miranda's quirky status is still alive and well -- the "prophylactic" rule is a constitutional one (of limited dimensions) -- a due process safeguard for implementing the right against self incrimination.   That doesn't necessarily hurt a parallel reporter's privilege argument, since any "prophylactic" rule would have to be constitutional in nature or else 1) Congress could override it, and 2) it wouldn't apply to the States.

I see where you are going. But, to me, this is just inherent in the prior restraint doctrine. It has to do with the "chilling effect" of such rules. Relevant to the reporter issue, I think we have to ask ourselves whether it is good policy to chill the government's ability to prosecute crimes just to foster an otherwise duplicative policy of "getting the word out."

But the chilling effect rationale doesn't just apply to prior restraint -- for example, NY Times vs Sullivan and the "actual malice" standard in civil libel cases.  Whether a reporter's privilege is necessary or even important to preventing a chilling effect is a question I would definitely expect an advocate of the privilege to demonstrate.

Well, first, the liberals are really relying on widespread public ignorance.....

Regardless of the merits of the issue (which is the topic of another thread), it seems to have inspired support for  a reporter's privilege in some conservative circles:

http://www.oag.state.tx.us/oagnews/release.php?id=1017

http://www.cjog.net/yesterday_lugar_files_companion_rep.html